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TMI Blog2020 (12) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... with another officer of the same rank. 3 That the ld. Pr. CIT has passed the instant order in violation to the provisions of clause (c) of Explanation 1 to sub section 1 of section 263 of the Income Tax Act, 1961 even after having information that the appellant was in appeal before the ld. CIT(Appeals) on the issue for which the ld. Pr. CIT initiated action u/s 263 of the Income Tax Act, 1961." 2. At the outset, it is noted that there is a delay in filing the present appeal by 143 days. In this regard, the ld. AR has submitted as under:- "The order u/s 263 of the Income tax Act, 1961 was passed by the ld. CIT on 28.02.2020 and same was received by the appellant on 04.03.2020. As per provisions of section 253(3) the appeal against such order was to be submitted before the Hon'ble Bench on or before 03.05.2020. However due to lockdown in the country imposed on 25.03.2020 which remained upto 03.05.2020 the appeal could not be filed. Further the Hon'ble Ministry of Law and Justice, Govt. of India vide The Taxation and other Laws (Relaxation of Certain Provisions) Ordinance 2020 dated 31.03.2020 allowed time up till 30.06.2020 for filing of appeal. Further the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajmer and is pending as of now. The ld. Pr, CIT, Ajmer examined the assessment records and alleged that as per opinion of the ld. AO, the whole amount of cash deposit was to be treated as unexplained u/s 68 whereas he had assessed the income only at 10% of the cash so deposited and hence the order has been held to be erroneous and prejudicial to the interest of Revenue. Hence by the impugned order, he has set aside the order of the ld. AO and instructed for making fresh order in the manner prescribed by him. 5. It was submitted by the ld AR that it is quite apparent from the order of the ld. AO that there were various withdrawals also in the various bank accounts of the appellant and hence he arrived at a satisfaction that whole amount of cash deposit cannot be treated as income and he applied 10% of such cash deposit for assessing the net income of the appellant. Under these circumstances, it cannot be presumed that the order passed by the ld. AO was erroneous so far as prejudicial to the interest of Revenue. It seems that the ld. Pr. CIT has only gone on the wordings of the ld. AO which he has mentioned on page 2 (Last para) and page 3 (Top Line) but did not care to see that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various notices issued by the Assessing Officer nor any written submissions were filed and even the assessee failed to respond to the final show-cause notice issued by the Assessing Officer dated 30.11.2017. It was submitted that the Assessing Officer accordingly completed the assessment u/s 144 read with section 143(3) considering that the cash deposits totaling to Rs. 84,47,450/- as unexplained income from undisclosed sources. It was submitted that once the Assessing Officer has reached such a conclusion then the entire amount of cash deposit should have been brought to tax u/s 68 of the Act. However, the Assessing officer has made the addition only to the extent of 10% of such cash deposits which has rendered the assessment order erroneous in so far as prejudicial to the interest of the Revenue. It was further submitted that the tax was also calculated at normal rate instead of 30% as per section 115BBE of the Act. 8. It was further submitted by the ld DR that during the revisionary proceedings, the assessee was issued a show cause and he submitted that his main source of income of the assessee was from Services/Commission in respect of RTO services to transporters. However, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the whole of such deposits to tax and bringing only 10% of such deposits to tax is clearly erroneous. Further, the basis of arriving at 10% of such deposits as income has not been spelt out and therefore, there is clearly an inconsistency between these findings and arriving at the taxable income and the order so passed is clearly erroneous and prejudicial to the interest of the Revenue. Given that the assessee has failed to respond to the show-cause issued by the AO and there was no explanation/submissions filed by the assessee before the AO, it would be wrong to assume that the AO had considered the nature and impact of the debit entries so reflected in the bank statements while arriving at the taxable income. At the same time, considering the contention of the ld AR that main source of income of the assessee was from Services/Commission in respect of RTO services to transporters and in the bank accounts, there are various debit entries in terms of payments in relation to such services which can be duly explained and therefore whole cash deposit cannot be assessed as undisclosed income, we direct the AO to verify such debit entries and consider the explanation of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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